Citation NR: 9726267
Decision Date: 07/30/97 Archive Date: 08/06/97
DOCKET NO. 94-32 572 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an increased rating for advanced degenerative
arthritis, left hip, status post total hip replacement and
arthroplasty, currently rated as 50 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
W. Yates, Associate Counsel
INTRODUCTION
The veteran served on active military duty from October 1943
to March 1946.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a January 1994 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida. That rating decision confirmed and
continued a 30 percent rating for the veteran’s service-
connected advanced degenerative arthritis, left hip, status
post total hip replacement and arthroplasty. A June 1996
rating decision granted an increased disability rating of 50
percent, effective December 1993, for the veteran’s left hip
disorder.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that his service-connected
advanced degenerative arthritis, left hip, status post total
hip replacement and arthroplasty has increased in severity
and warrants a disability rating in excess of the 50 percent
evaluation currently assigned. Specifically, he alleges that
his left hip disorder is manifested by a limited range of
motion, pain and discomfort.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that
the preponderance of the evidence is against an increased
rating, in excess of 50 percent, for advanced degenerative
arthritis, left hip, status post total hip replacement and
arthroplasty.
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran’s appeal.
2. The veteran’s service-connected left hip disorder is
currently manifested by three well healed and nontender
scars; flexion to 60 degrees; extension to 0 degrees;
abduction to 80 degrees, adduction to 0 degrees, pain on
motion; and complaints of occasional instability, pain and
discomfort.
3. The veteran’s service-connected left hip disorder results
in no more than a moderately severe disability.
CONCLUSION OF LAW
The criteria for a rating in excess of 50 percent for
advanced degenerative arthritis, left hip, status post total
hip replacement and arthroplasty have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4,
including § 4.7 and Diagnostic Codes 5010-5054, 7803, 7804
(1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Preliminary Considerations
The veteran’s claim is “well grounded” within the meaning of
38 U.S.C.A. § 5107(a) (West 1991), in that he has presented a
claim which is plausible. His assertions that his left hip
disorder has increased in severity is plausible. See
Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992) (where a
veteran asserted that his condition had worsened since the
last time his claim for an increased disability evaluation
for a service-connected disorder had been considered by VA,
he established a well grounded claim for an increased
rating). All relevant facts have been properly developed and
no further assistance to the veteran is required to comply
with the duty to assist mandated by 38 U.S.C.A. § 5107(a).
Service-connected disabilities are rated in accordance with a
schedule of ratings which are based on average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. Part 4 (1996). The disability ratings evaluate the
ability of the body to function as a whole under the ordinary
conditions of daily life, including employment. Evaluations
are based on the amount of functional impairment; that is,
the lack of usefulness of the rated part or system in self
support of the individual. 38 C.F.R. § 4.10 (1996).
In DeLuca v. Brown, 8 Vet.App. 202 (1995), the United States
Court of Veterans Appeals held that 38 C.F.R. §§ 4.40 and
4.45 (1996) were not subsumed into the diagnostic codes under
which a veteran’s disabilities are rated. Therefore, the
Board has to consider the “functional loss” of a
musculoskeletal disability under 38 C.F.R. § 4.40 (1996)
separate from any consideration of the veteran’s disability
under the diagnostic codes. Id., at 206. Functional loss
may occur as a result of weakness or pain on motion of the
affected body part. 38 C.F.R. § 4.40 (1996). The factors
involved in evaluating and rating disabilities of the joints
include: weakness; fatigability; incoordination; restricted
or excess movement of the joint; or pain on movement.
38 C.F.R. § 4.45 (1996). These factors do not specifically
relate to muscle or nerve injuries independently of each
other, but refer to overall factors which must be considered
when rating the veteran’s joint injury. Id..
Consideration of the entire recorded history is necessary so
that a rating may accurately reflect the elements of a
current disability. 38 C.F.R. § 4.2 (1996); Peyton v.
Derwinski, 1 Vet.App. 282 (1991). While the regulations
require review of the recorded history of a disability by the
adjudicator to ensure a more accurate evaluation, the
regulations do not give past medical reports precedence over
the current medical findings. Where an increase in the
disability rating is at issue, the present level of the
veteran's disability is the primary concern. Francisco v.
Brown, 7 Vet.App. 55, 58 (1994).
II. Factual Background
The RO has retrieved the veteran’s service personnel records,
and they appear to be complete. His Report of Separation
reveals that he served on active duty from October 1943 to
March 1946. A January 1943 pre-induction examination
revealed that he was rejected for entrance into the armed
forces for a pilonidal cyst and Perthes’ disease, left hip.
The report also noted that he had “[o]steomyelitis of the
legs - Perthes’ type of the left hip, with marked destructive
changes.” A subsequent entrance examination was conducted in
October 1943. The report of this examination noted
essentially normal findings throughout. Thereafter, he was
admitted into the United States Army that same month. An
October 1944 treatment report revealed that he was treated
for an acute strain of his sartorius muscle, left leg. The
treatment report noted that this injury occurred when he
accidentally fell into an open excavation. His discharge
examination was conducted in March 1946. The report of this
examination noted the veteran’s complaints of pain in his
left hip. The examination report also indicated that his
left hip was fractured prior to his entry into active duty
service and that there was “no army hospitalization” for this
condition.
In June 1946, the RO issued a rating decision granting
service connection for an appendectomy scar and myalgia, left
lower extremity. That rating decision assigned
noncompensable ratings to each condition. A January 1948
rating decision granted an increased rating of 30 percent for
the veteran’s service connected myalgia, left lower
extremity, rated analogous to traumatic arthritis, effective
November 1947.
In May 1978, the veteran underwent a total left hip
replacement. The discharge summary, dated May 1978, revealed
a post operative diagnosis of advanced degenerative
arthritis, left hip. An October 1978 rating decision granted
an increased rating of 100 percent for the veteran’s service
connected left hip disorder, effective May 1978. In October
1979, the RO issued a rating decision that reduced the
disability evaluation for the veteran’s advanced degenerative
arthritis, left hip, post operative total hip replacement to
50 percent, effective October 1979. The October 1979 rating
decision also granted service connection for chronic lumbo-
sacral back strain, secondary to his service-connected left
hip disorder, and assigned a disability rating of 10 percent,
effective December 1978.
Medical treatment records, dated October 1992, were submitted
from the Arlington Hospital in Arlington, Virginia. These
treatment reports reveal that the veteran was hospitalized
for “a left total hip arthroplasty for degenerative arthritis
secondary to avascular necrosis 16 years ago.” A discharge
summary report, dated October 1992, noted his prognosis, in
part, of a maximum recovery in 9 to 12 months. It also
indicated that he had underwent a triple bypass for coronary
artery disease ten years prior to his admission. In February
1993, the RO issued a rating decision granting a 100 percent
disability rating for the veteran’s left hip disorder,
effective October 1992. That rating decision also assigned a
30 percent rating for the veteran’s left hip disorder,
effective December 1993 and pending a future examination to
consider the residuals prior to that date.
In December 1993, a VA compensation and pension examination
was conducted. The examination report noted the veteran’s
subjective complaints of pain on the left hip and knee.
Physical examination revealed grade III pedal edema on the
left leg and trace pedal edema on the right leg. The
examination report also noted three scars on the left hip,
all of which were deemed to be nontender. The report
indicated that he walked with a moderate limp, that he used a
cane at times and that his left leg is about one inch shorter
than his right. Range of motion testing of his left hip
revealed 0 to 90 degrees of flexion, 0 to 10 degrees of
extension, 0 to 10 degrees of internal rotation, 0 to 20
degrees of abduction, and 0 to 5 degrees of adduction. The
report stated that “[t]here was no pain observed on any of
the above movements except when the veteran sits for 20
minutes or longer.” X ray examination of his left hip was
noted to be unremarkable and the prosthesis appeared well
seated. The report concluded with a diagnosis of status post
operative left total hip replacement, twice.
A statement from the veteran, dated March 1994, stated that
“[a]lthough I can now get around better with the new one, my
mobility is not as pain free as previously, nor do I have the
strength or freedom of motion as I had before.” He also
indicated that “[b]y early afternoon I require the use of a
cane and am once again on a regime of aspirin.”
In August 1994, the veteran filed his Substantive Appeal, VA
Form 9. In his appeal form the veteran indicated that he
does have pain on motion. He noted that “[t]he examiner was
correct when he said that the leg would bend 90 degrees but
was not correct when he said there was no “apparent” pain.
There is some pain in reaching 90 degrees, but holding it for
more than a second or two is extremely uncomfortable.” He
indicated that he must use a cane “after two or three hours”
and that his left leg will buckle once or twice a month.
Private medical treatment records, dated June 1995 to May
1996, were submitted from Diana D. Carr, M.D. An October
1995 treatment report noted the veteran’s complaints “that
the worst pain is at his hip but overall his condition is
improving.” X ray films of his left hip, dated August 1995,
were reviewed at that time and were noted to show “a long-
stem revision type prosthesis which is sitting in excellent
bone stock and very good position.” The October 1995
treatment report also stated that “I am going to continue him
working on strength. I have discussed appropriate activities
with him. He has asked me about sky-diving.” A December
1995 treatment report noted that the veteran’s “hip strength
is greater than average for his age.” It indicated that
“[h]e is now having pain which he questions as due to
overuse.” The report noted that these symptoms are “very
similar in both hips although he has a normal hip on the
right and a total hip on the left” and are more suggestive of
spinal stenosis.
Medical treatment records, dated February 1993 through
October 1996, were submitted from the VA Outpatient Treatment
Center in Fort Myers, Florida. A September 1995 treatment
report revealed that he was given Darvon for pain in his left
hip. An April 1996 treatment report noted that his left hip
was stable and he was ambulatory.
In May 1996, a VA compensation and pension examination was
conducted. The report of this examination noted the
veteran’s complaints of pain in the left hip and required use
of a cane to ambulate in the afternoons. Range of motion
testing revealed that the veteran's left hip exhibited 0 to
60 degrees of flexion, extension to 0 degrees, adduction to 0
degrees, and 0 to 80 degrees of abduction. The report noted
that he “is unable to rotate his left hip without a great
deal of difficulty and circular movement above the femoral
head in the acetabulum.” X ray examination of his left hip
revealed “no evidence of any bony lesion or loosening defect.
It also noted a satisfactory appearance of the left hip
prosthesis.
III. Analysis
The veteran’s service connected advanced degenerative
arthritis, left hip, status post total hip replacement and
arthroplasty is currently rated as 50 percent disabling under
Diagnostic Codes 5010-5040. Under 38 C.F.R. § 4.71a,
Diagnostic Code 5054 (1996), a 50 percent rating is warranted
for a hip replacement with moderately severe residuals of
weakness, pain, or limitation of motion The next higher
rating of 70 percent contemplates markedly severe residuals
of weakness, pain or limitation of motion following
implantation of prosthesis. 38 C.F.R. Part 4, Diagnostic
Codes 5054 (1996)
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
for the higher rating. 38 C.F.R. § 4.7 (1996).
After a thorough review of the veteran’s claims file, the
Board concludes that the veteran’s left hip disorder results
in no more than a moderately severe disability.
Thus, the Board concludes that the preponderance of the
evidence is against a rating in excess of 50 percent for that
disability. His most recent VA examination revealed that his
left hip had flexion to 60 degrees, extension to 0 degrees,
abduction to 80 degrees and adduction to 0 degrees. It noted
that he can walk without a cane in the morning, and ambulates
with a cane in the afternoon. X ray examination of his left
hip revealed no evidence of any bony lesion or loosening
defect. An outpatient treatment report, dated April 1996,
noted that his left hip was stable and that he was
ambulatory. A December 1995 treatment record from Dr. Carr
noted that his “hip strength is greater than average for his
age.” His October 1995 treatment report indicated that he was
contemplating taking up skydiving.
Based upon the evidence of record, the Board concludes that
the veteran has not shown the criteria required for a
disability evaluation in excess of 50 percent for his
service-connected residuals of multiple left hip replacements
under Diagnostic Code 5054. There is no evidence that the
veteran's post-operative residuals of multiple left total hip
replacements are manifested by markedly severe residuals of
weakness, pain, or limitation of motion.
In reaching this decision, the Board has considered the
history of the veteran's left hip disorder, as well as the
current clinical manifestations and the effect this single
disability may have on the earning capacity of the veteran.
38 C.F.R. §§ 4.1, 4.2 (1996). The Board has also considered
the fact that functional loss due to pain may warrant an
increased evaluation for the veteran’s post-operative
residuals of multiple total hip replacements. 38 C.F.R. §
4.40, DeLuca v. Brown, 8 Vet.App. 202 (1995). In this case,
however, the veteran’s complaints of pain on motion are
specifically contemplated in the 50 percent disability
evaluation assigned to the veteran under Diagnostic Code
5054.
The Board also notes that a compensable rating may be
assigned for the scars resulting from the veteran’s multiple
hip operations. See Esteban v. Brown, 6 Vet.App. 259 (1994).
For his scars to be compensable, the veteran would have to
show that the scars were either poorly nourished, with
repeated ulceration, (38 C.F.R. Part 4, Diagnostic Code 7803
(1996)), or tender and painful on objective demonstration (38
C.F.R. Part 4, Diagnostic Code 7804 (1996)), or that it
caused a “limitation of function of the affected body part”
(38 C.F.R. Part 4, Diagnostic Code 7805 (1996)). The Board,
however, concludes that since there is no evidence of pain,
tenderness, or ulceration, a separate rating for scars is not
warranted under 38 C.F.R. § 4.118, Diagnostic Codes 7803 and
7804.
During the pendency of this claim, the veteran indicated that
he had developed additional disability caused, in effect, by
an altered gait due to a discrepancy in leg length following
the hip replacement. The Board notes that in 1979 service
connected was granted for chronic lumbosacral strain,
secondary to his left hip disorder, and a 10 percent
disability evaluation was assigned. The veteran is in
receipt of a combined 60 percent disability rating for
residuals of the left hip replacement, including the 10
percent assigned for the back problems which developed as a
result of the hip disability.
ORDER
An increased disability evaluation in excess of 50 percent
for advanced degenerative arthritis, left hip, status post
total hip replacement and arthroplasty, is denied.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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